preliminary opposition in wilson v. bowen

8/14/2019 Preliminary Opposition in Wilson v. Bowen

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July 25, 2008

HOWARDRICENEMEKOVSKICANADY

FALK& KABKINA Professional Cotporation

Three Embarcadero CenterSeventh FloorSan Francisco, CA 94111-4024Telephone 415.434.1600Facsimile 415.217.5910www.howardrice.cornWriter's Information:

Steven L. MayerDirect: [email protected]

The Hon orable Ronald M. Geo rge, Chief Justice of California,and Hono rable Associate JusticesSupreme Court of California350 Mc Allister StreetSan Francisco, California 94102-4797Re:ilson v. Bow en (A brahamson)Case No. S165180Dear Ch ief Justice George and H onorable Associate Justices:Pursuant to the Court's Order dated July 18, 2008, Real Party in Interest Daniel M.Abrahamson, the proponent of Proposition 5, files this Preliminary Opposition to the Petition forWrit of Mandate. Real Party respectfully reserves the right to file further opposition should theCourt issue an alternative writ.

One thing should be clear at the outset: The relief Petitioners seek is unprecedented. TheCourt has infrequently removed a measure from the statewide ballot when it was beyond thepower of the electorate to adop t, because it violated the "once a decade" rule for reapp ortionment(Legislature v. Deukmejian, 34 Cal. 3d 658 (1983)), because it did not enact a statute (AFL-CIOv. Eu, 36 Cal. 3d 687 (1984)) or because it violated the single-subject rule (Senate v. Jones, 21Cal. 4th 1142 (1999)). But it has never removed a measure from the statewide ballot on theground that some of its provisions, though within the power of the electorate to adopt, weresubstantively unconstitutional.1

The reasons for this disparate treatment were addressed in Independent Energy ProducersAss 'n v. McPherson, 38 Cal. 4th 1020 (2006). There the Court recognized that "preelectionreview of an initiative measure may be appropriate when the challenge is not based on a claimthat the substantive provisions of the measure are unconstitutional, but rests instead on acontention that the measure is not one that properly may be enacted by initiative." Id. at 1029

'The Court has also held that measures could not qualify for the statewide ballot for failure tocomply with the statutes governing ballot qualification. See, e.g., Boyd v. Jordan, 1 Cal. 2d 468 (1934).This ground has no relevance here. The cases invalidating local initiatives that were precluded bylegislative action are equally irrelevant. See, e.g., Comm. of Seven Thousand v. Superior Court, 45 Cal.3d 491 (1988).


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The Hono rable Ronald M. Georg e, Chief Justice of California,and Hon orable Associate JusticesJuly 25, 2008Page 2

(first emphasis added). Nevertheless, even in these cases, "a court should take into considerationthe availability of postelection relief in deciding whether it is preferable to resolve the issue inthe often charged and rushed atmosphere of an expedited preelection review, or instead to leavethe challenge for resolution with the benefit of the full, unhurried briefing, oral argument, anddeliberation that generally will be available after the election." Id. at 1025. Indeed, in suchcases, "deferring judicial resolution until after the election . . . often will be the wiser course."Id. at 1030.

The balance is much more unfavorable to preelection review in cases like this one, wherethere is no contention that the voters lack power to adopt the challenged initiative. In such cases,as Independent Energy Producers stated, there is a "strong presumption against preelectionreview." Id. Indeed, resolving such cases prior to an election is "presumptively improper." Id .at 1025. Yet Petitioners neither cite Independent Energy Producers nor recognize that they mustovercom e a "strong presumption" to obtain preelection review.

Instead, Petitioners argue that preelection review is proper where there is a "clear showingof invalidity," citing the twenty-six-year-old decision in Brosnahan v. Eu, 31 Cal. 3d 1 (1982).Petition Memorandum Of Points And Authorities In Support Of Verified Petition ("Pet. Mem.")44. Even assuming arguendo that this case still enunciates the standard applicable to preelectionchallenges such as this one, Petitioners have fallen far short of making the "clear showing ofinvalidity" that Brosnahan demands. To begin with, Petitioners challenge only a small portionof Proposition 5; even if those provisions were invalid (which they are not), that would notjustify the relief Petitioners seek. Moreover, Petitioners' claim that preelection review isnecessary to avoid a post-election financial crisis ignores the Legislative Analyst's conclusionthat implementation of Proposition 5 will s a v e the State billions of dollars. Finally, even if theycould somehow justify removing the entire measure from the ballot for the sake of a fewassertedly invalid provisions, Petitioners have failed to show that the handful of provisions theychallenge are unconstitutional or that the constitutional issues they raise could not be resolved byjudicial interpretation of the measure after the election. For all these reasons, the Court shouldrefrain from interfering with the electoral process and summ arily deny the Petition.

STATEMENT OF FACTS

Proposition 5, the Nonviolent Offender Rehabilitation Act of 2008, aims to improve publichealth and safety by expanding community-based treatment and rehabilitation programs fornonviolent offenders, providing effective re-entry programs for nonviolent inmates, establishingcounty-based programs for at-risk youth and increasing the accountability of the agenciescharged with implementing the measure's reforms.

Proposition 5 seeks to accomplish these goals by (among other things) (1) creatingcomprehensive, and functionally interrelated, treatment programs for different levels ofnonviolent drug offenders; (2) adequately funding treatment programs for such offenders;(3) requiring the California Department of Corrections and Rehabilitation (CDCR) to investmore resources in proven re-entry and rehabilitation programs tailored to inmates' and parolees'needs; (4) providing incentives to nonviolent inmates and parolees to participate in rehabilitation


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The Hon orable Ronald M. Geo rge, Chief Justice of California,and Hon orable Associate JusticesJuly 25, 2008Page 3

programming; (5) reducing parole agent caseloads by shortening parole supervision fornonviolent parolees; (6) alleviating state prison overcrowding by halting the re-imprisonment ofnonviolent parolees for minor violations of parole; and (7) creating opportunities for at-riskyouth to turn their lives around before they becom e entwined in the criminal justice system.2

To achieve these interrelated reforms, Proposition 5 amends several dozen statutoryprovisions spanning four separate codes: the Government Code, the Penal Code, the Health andSafety Code, and the Welfare and Institutions Code. Though the measure's text occupies 60single-space printed pages, its main provisions can be sum marized as follows:

A. Diversion To Treatment For Nonviolent Drug Offenders.The diversion portion of Proposition 5 takes as its starting point Proposition 36, the

Substance Abuse and Crime Prevention Act of 2000. Proposition 36 mandated probation andcommunity-based drug treatment, rather than incarceration, for nonviolent drug offenders. PenalCode 1210.1. It also mandated community-based drug treatment for nonviolent parolees whocommit nonviolent drug possession offenses while on parole. Id. 3063.1.

Proposition 5 seeks to build upon the successes and address the shortcomings ofProposition 36 by following many of the recommendations identified by researchers from the

'These reforms were not created out of whole cloth by Proposition 5's drafters. To thecontrary, they incorporate many of the core recommendations advanced in recent years bynumerous expert panels, blue ribbon commissions and independent analysts who have studiedCalifornia's corrections system. See, e.g., California Department of Corrections andRehabilitation, Expert Panel on Adult Offender Reentry and Recidivism Reduction Programs,Report to the California State Legislature: A Roadmap for Effective Off ender Programming inCalifornia (June 29, 2007), available at http://www.cdcr.ca.govinews/ExpertPanel.html;University of California, Los Angeles Integrated Substance Abuse Program, Evaluation of theSubstance A buse and Crime Prevention A ct: Final Report (April 13, 2007), available athttp://www.uclaisap.org/prop36/documents/SACPAEvaluationReport.pdf; Office of theInspector General, Special Review into In-Prison Substance Abuse Programs Managed by theCalifornia Department of Corrections and Rehabilitation (February 2007), available athttp ://www.nationalinstituteofcorrections.gov/Library/022181; Joan Petersilia, California PolicyResearch Center, Understanding California Corrections (May 2006), available athttp://www.ucop.edu/cprc/documents/understand_ca_corrections.pdf; Douglas Longshore,Ph.D., et al., University of California, Los Angeles Integrated Substance Abuse Program,Evaluation of the Substance A buse and Crime Prevention Act: 2004 Report (July 22, 2005),available at http://www.uclaisap.org/prop36/documents/sacpa080405.pdf; CorrectionsIndependent Review Panel ("The Deukmejian Commission"), Reforming Corrections (June2004), available at http://cpr.ca.gov/report/indrpt/corr/; Little Hoover Commission, For OurHealth & Safety:oining Forces to Defeat A ddiction (March 2003), available athttp ://www. lhc. ca . gov/lhcdir/169/report169.pdf.


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University of California, Los Angeles who were charged by the State with evaluating theinitiative's impact. See, e.g., Douglas Longshore, Ph.D., et al., University of California, LosAngeles Integrated Substance Abuse Program, Evaluation of the Substance A buse and CrimePrevention A ct: 2004 Report (July 22, 2005), available at http://www.uclaisap.org/prop36/documents/sacpa080405.pdf (accessed July 23, 2008).

To this end, Proposition 5 creates and adequately funds a continuum of community-basedtreatment and court supervision for nonviolent drug offenders. Specifically, Proposition 5creates three separate tracksTracks I, II and IIIfor the treatment and supervision ofoffenders. Petition Exhibit ("Pet. Ex.") A at 14-30 (Prop. 5, 13-18 (proposed Penal Code1210.02(a), 1210.03, 1210.04, 1210.05, 1210.1, 1210.2). Offenders are assigned to a trackbased on the severity of their drug-related offenses and their criminal histories. Courts can offera broad range of treatment and rehabilitation services, and impose a wide range of levels ofsupervision, to offenders in each track.

Track I is a deferred entry of judgment program modeled closely on Penal CodeSection 1000 that diverts into treatment the lowest level drug offenders. Pet. Ex. A at 16-18(Prop. 5, 14 (proposed Penal Code 1210.03)). Under Track I, offenders can receive treatmentservices for up to 18 months. Those who perform satisfactorily shall have their criminal chargedismissed and case records permanently sealed; those who perform unsatisfactorily can havejudgment entered against them and, depending on the circumstances, be sentenced under existinglaw or referred to treatment under Track II. Id. at 16-19 (Prop. 5, 14, 15 (proposed Pena l Code1210.03, 1210.04)).

Track II is a post-conviction diversion program for mid-level nonviolent drug offenders.The eligibility requiremen ts for this track are similar to those for Propo sition 36, as is the processfor adjudicating probation violations, though the length of treatment under Track II is extendedto a maximum of 24 months, or double the length of treatment currently available underProposition 36. S ee Penal Code 1210.1(c)(3). Notably, Track II confers upon courts far greaterdiscretion than does Proposition 36 to retain offenders in treatment for longer periodsnotwithstanding problems, and provides courts with the authority to impose graduated sanctionsand jail on various offenders in order to improve treatment retention. Pet. Ex. A at 13 (Prop. 5,11 (proposed Penal Code 1210(j), (1), (m)). By contrast, courts have no power to impose jailsanctions upon a person in treatment under Proposition 36. See People v. Tanner, 129 Cal. App.4th 223, 234 (2005); In re Taylor, 105 Cal. App. 4th 1392, 1397-98 (2003).

Track III basically reenacts the current "drug courts" by a different name. It provides apost-conviction diversion program for slightly more serious nonviolent drug offenders who areineligible for Tracks I and II but who courts believe could benefit from probation and treatment.Participation in and the rules governing Track III are contained in the measure. Pet. Ex. A at 28-30 (Prop. 5, 18 (proposed Penal Code 1210.2)).Proposition 5 permits offenders to move from Track I to Tracks II or III, or from Track II

to Track III, depending on their circumstances. The measure also insures that nonviolent drugoffenders who suffer co-occurring psychiatric disorders are not deprived of treatment services


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under the acta particular failing of the current treatment delivery system. Pet. Ex. A at 15, 60(Prop. 5, 13, 50 (proposed Penal Code 1210.02(a)(6); proposed Welf. & Inst. Code5600.33)).

B. Parole And CDCR Reforms.Virtually all analysts of California's corrections system agree that extreme overcrowding

in the State's prisons prevents the CDCR from effectively providing rehabilitation and re-entryprogramming for its inmates. S ee, e.g., California Departm ent of Corrections and Rehabilitation,Expert Panel on Adult Offender Reentry and Recidivism Reduction Programs, Report to theCalifornia State Legislature: A Roadmap for Effective Off ender Programming in California(June 29, 2007), available at http://www.cdcr.ca.gov/news/ExpertPanel.html; Office of theInspector General, Special Review into In-Prison Substance Abuse Programs Managed by theCalifornia Department of Corrections and Rehabilitation (February 2007), available athttp://www.nationalinstituteofcorrections.gov/Library/022181; Corrections Independent ReviewPanel ("The Deukmejian Commission"), Reforming Corrections (June 2004), available athttp://cpr.ca.gov/report/indrptkore. Indeed, California prisons currently are at 170 percent ofcapacity. Prison overcrowding is exacerbated by the fact that 67 percent of parolees return toprison for violation of their terms of parole (more than twice the national average). Because ofacute overcrowding and chronic churning of the inmate population, most inmates currentlyreceive no rehabilitation or re-entry programming before their release. See, e.g., Little HooverCommission, Solving California's Corrections Crisis: Time is Running Out (January 2007),available at http ://w ww. lhc. ca . gov/lhalir/185/Report185.pdf. Moreover, as the Deukmej ianCommission observed, "[t]oday's correctional system has little accountability . . . and notransparency." Corrections Independent Review Panel ("The Deukmejian Commission"),Reforming Corrections,

According to independent experts, several interrelated factors are to blame for the highrecidivism rate among California parolees. These include unusually long terms of parolesupervision for low-risk inmates, parole board practices whereby parole is revoked and paroleesare returned to prison for committing technical and minor violations of parole, parole agents'crushing caseloads that prevent them from properly supervising parolees, and the lack ofadequate re-entry services for parolees, including substance abuse and mental health treatment,vocational training and literacy programs. See, e.g., Little Hoover Commission, SolvingCalifornia's Corrections Crisis: Time is Running Out; Corrections Independent Review Panel("The Deukmejian Commission"), Reforming Corrections; California Department of Correctionsand Rehabilitation, Expert Panel on Adult Offender Reentry and Recidivism ReductionPrograms, Report to the California State Legislature: A Roadmap for Effective Of fenderProgramming in California.

Proposition 5 addresses each of these issues. Specifically, the measure cuts the parole-to-prison pipeline in several different ways: it requires counties, not prisons, to handle technicaland misdem eanor violations of parole for nonviolent offenders (Pet. Ex. A at 37-38 (Pro p. 5, 21(proposed Penal Code 3063.01(c), (d)))); it provides nonviolent parolees access to appropriate


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The Hono rable Ronald M. Georg e, Chief Justice of California,and Hono rable Associate JusticesJuly 25, 2008Page 6

re-entry services to help them become productive and healthy citizens (id. at 35 (Prop. 5, 20(proposed Penal Code 3000(c)(2)))); it reduces the length of parole supervision for nonviolentoffenders (id. (proposed Penal Code 3000(c)(3)))); it provides community-based substanceabuse treatment for nonviolent parolees who commit nonviolent drug possession offenses (id. at37 (Prop. 5, 21 (proposed Penal Code 3063.01(a)))); and it allows nonviolent offenders toaccess rehabilitation programs for an additional year beyond the expiration of their parole term.Id. at 37 (Prop. 5, 20(proposed Penal Code 3000(d))).

To ensure that these reforms are adequately implemented and monitored, and givenappropriate priority, Proposition 5 creates several leadership positions within CDCR that aredevoted to advancing the agency's rehabilitation mission. For example, the measure establishesthe Secretary of Rehabilitation and Parole to co-lead the agency (id. at 7 (Prop. 5, 4 (proposedGov't Code 12838(a)))), and creates Rehabilitation Wardens to oversee rehabilitation efforts ineach of CDCR's institutions. Id. at 43 (Prop. 5, 29 (proposed Penal Code 6050.1(a))).Furthermore, Proposition 5 would require CDCR to provide rehabilitation programs for inmates(id. at 33, 34 (Prop. 5, 20 (proposed Penal Code 3000(a)(1), (c)(1)))) and to promoteparticipation of nonviolent inmates in such programs by awarding good behavior and worktimecredits towards terms of confinement. Id. at 31-32 (Prop. 5, 19 (proposed Penal Code2933 (b)-(d))).

Proposition 5 also attempts to promote transparency of CDCR's operations, budget,spending and program outcomes by establishing a 21-member Parole Reform Oversight andAccountability Board to review the implementation of the measure's requirements by theDepartment. Id at 39-41 (Prop. 5, 23 (proposed Penal Code 3063.03)). The initiative alsorequires the State Inspector General to publish a report annually detailing the prevalence andtypes of rehabilitation programs available at each California prison, and to rank and rate thestate's prisons and facilities in terms of their rehabilitation efforts. Id. at 43-44 (Prop. 5, 30(proposed Penal Code 6126.01)).

C. Opportunities For Youth.Drug dependence and addiction often start early. Yet California currently offers virtuallyno publicly funded substance abuse treatment options for youth under the age of 18.

Proposition 5 aims to correct this imbalance by creating a system of care for at-risk youth. Itwould do so by dedicating annual funding to counties of at least $65 million per year, as well asmillions of dollars more from fines collected from adults for low-level marijuana offenses inorder to establish a new system of care that meets the spectrum of youth needs, including familytherapy, mental health interventions, educational and employment stipends, and more. Themeasure would also require science-based educational programs and counseling, instead of amisdemeanor conviction for youths arrested for possession of one ounce or less of marijuana.Pet. Ex. A at 45, 46-47, 54 (Prop. 5, 31, 35, 39 (proposed Health & Safety Code 11357(e),(f); 11999.6(c)(1); 11999.30(a))).


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ARGUMENTI.

REMOVAL FROM THE BALLOT IS UNWARRANTED WHEREPETITIONERS CHALLENGE ONLY A SMALL PORTION OF ASTATEWIDE MEASURE.Petitioners contend that Proposition 5 should be removed from the ballot merely because asmall minority of its provisions are substantively unconstitutional. Even if these challenges weremeritoriousand (as we show below) they are notthey would not justify removing theinitiative from the ballot.At m ost, the challenged prov isions amount to a dozen or so isolated sentences in a measure

that comprises 60 pages of single-spaced text in Petitioners' Exhibits. For example, the measurecontains page after page of unchallenged provisions addressing the parole and rehabilitation ofincarcerated inmates. Pet. Ex. A at 30-44, 55-56, 59-60. In contrast, Petitioners challenge onlythree provisions that have any bearing on these subjects: two provisions defining the duties andterm of the Secretary of Rehabilitation and Parole (and a few subsidiary officials) and oneprovision requiring that appointments to the Board of Parole Hearings be made on theSecretary's recommendation. Pet. Mem. 25-32. Accordingly, Proposition 5 contains scores ofprovisions regarding rehabilitation and parole of state prisoners that Petitioners do not challengeand that can be given indepen dent effect regardless of any supposed defects in the few p rovisionsPetitioners challenge.3

3 For example, Petitioners do not challenge the measure's provisions that, inter alia: establishrehabilitation programs within the CDCR for inmates prior to their release (Pet. Ex. A at 32-34 (Prop. 5,20 (proposed Penal Code 3000(a)(1), (c)(1)))); encourage nonviolent inmates to reap the benefits ofsuch programs by awarding credit reductions towards terms of confinement for nonviolent inmates whoparticipate in them (id. at 31-32 (Prop. 5, 19 (proposed Penal Code 2933(b)-(d)))); require CDCR toconduct case assessments to "determine the inmate's needs" for programs "most likely to result in . . .successful reintegration" into society (id. at 34 (Prop. 5, 20 (proposed Penal Code 3000(c)(1))));mandate CDCR to "provide rehabilitation programs tailored to the parolee's needs as defined by the caseassessment" (id. at 35 (Prop. 5, 20 (proposed Penal Code 3000(c)(2)))); reduce the term of parolesupervision for nonviolent offenders to six months (id. (proposed Penal Code 3000(c)(3))); permit thesix-month parole supervision to be extended under certain circumstances (id. (proposed Penal Code3000(c)(3)(C))); permit increased parole supervision, up to a term of five years, for offenders whocommitted serious or violent felonies (id. (proposed Penal Code 3000(c)(4))); provide community-basedsubstance abuse treatment for nonviolent parolees who commit nonviolent drug possession offenses (id.at 37 (Prop. 5, 21 (proposed Penal Code 3063.01(a)))); prohibit the re-incarceration in state prison ofnonviolent parolees who commit technical or misdemeanor violations of parole (id. (proposed Penal Code3063.01(c), (d))); allow nonviolent offenders to access rehabilitation programs for an additional yearbeyond the expiration of their parole term (id. at 37 (Prop. 5, 20 (proposed Penal Code 3000(d))));establish a notice hearing within three business days for parolees alleged to have committed a violation ofparole, and provide for a right to counsel at this hearing (id. at 38 (Prop. 5, 21 (proposed Penal Code

( . . . continued)


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The same is true for the portion of the measure addressing the treatment of no nviolent drugoffenders. Of all these proposed statutes, Petitioners challenge only a handful, which either limitjudicial sentencing discretion or provide that, in exercising that discretion, a judge "must rely" onor "be guided" by clinical evaluations made by licensed personnel. Pet. Mem. 39-41.Accordingly, Proposition 5 contains dozens of provisions relating to drug treatment thatPetitioners do not challenge. 4 And even if this were not true, as just discussed, Proposition 5contains numerous unchallenged provisions dealing with the parole and rehabilitation of stateprisoners that could readily be implemented regardless of Petitioners' constitutional attack on theportions of the measure addressing the treatment of nonviolent drug offenders. See n.3, supra.Finally, Proposition 5 also contains numerous provisions dealing with at-risk youth (see p.6,supra), none of which are cha llenged by Petitioners.

These undisputed and indisputable facts require denial of the Petition. In A FL-CIO v . Eu ,36 Cal. 3d 687 (1984), this Court removed an initiative from the ballot where two of its threeprovisions were beyond the power of the electorate to adopt. However, the availability of thisremedy was due to the Court's finding that the third provision ("section 2") had only onefunction: to implement the first provision, which was constitutionally invalid. "Consequently, ifsection 1 is invalid, section 2 falls with it; it cannot be severed to obtain independent life." Id. at715.

(Continued . . . )3063.01(f)))); require the parole authority to collect and report data about parole violations (id.(proposed Penal Code 3063.01(g))); direct CDCR to help develop an annual international conferenceaddressing prisoner and parolee rehabilitation (id. at 40 (Prop. 5, 23 (proposed Penal Code3063.03(a)(15)))); and require the State Inspector General to publish a report annually detailing theprevalence and types of rehabilitation programs available at each California prison, and to rank and ratethe state's prisons and facilities in terms of their rehabilitation efforts. Id. at 43-44 (Prop. 5, 30(proposed Penal Code 6126.01)).

tor example, Petitioners do not challenge the measure's provisions that newly define whichoffenders are eligible for treatment diversion (Pet. Ex. A at 11 (Prop. 5, 11 (proposed Penal Code1210(a)))); expand the types of treatment programs and services to be funded by the State (id. (proposedPenal Code 1210(b))); create addiction training programs for persons working with offenders subject tothe measure (id. at 12 (Prop. 5, 11 (proposed Penal Code 1210(i)))); circumscribe the use of drug testresults administered to offenders in treatment (id. at 15 (Prop. 5, 13 (proposed Penal Code1210.02(a)(5)))); set forth rules governing courts' response to offenders who fail to pay court-orderedcosts of treatment (id. (proposed Penal Code 1210.02(a)(7)(A)-(E))); empower courts to requireoffenders to participate in educational programs, vocational or literacy training, "and any other servicesthat may be identified as appropriate" (id. (proposed Penal Code 1210.02(a)(8))); provide for the drugtreatment of adults with co-occurring psychiatric disorders (id. at 60 (Prop. 5, 50 (proposed W elf. & Inst.Code 5600.33; proposed Penal Code 1210.02(a)(6)))); include drug treatment stakeholders in mentalhealth service planning (id. at 60 (Prop. 5, 51 (proposed Welf. & Inst. Code 5848(a)))); appropriateannual ongoing funding for Track III diversion programs (id. at 46 (Prop. 5, 34 (proposed Health &Safety Code 11970.3))); and require independent evaluation of courts and programs operating underTracks I, II and III. Id . at 46 (Prop. 5, 33 (proposed Health & Safety Code 11970.2.1))).


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In this case, by contrast, Petitioners do not even attempt to show nor could they that theprovisions of the initiative they do not challenge would be incapable of implementation if theirchallenges to a handful of the measure's other provisions prevail. Accordingly, they have shownno reason why these provisionswhich are unquestionably within the power of the electorate toadopt and which do not even arguably suffer from any constitutional defectshould not besubmitted to the voters. Their silence speaks volumes.

Because Proposition 5 contains scores of provisions that would have "independent life"even if Petitioners' challenge to a few of the measure's provisions were successful, the onlycourse consistent with the hallowed place of the initiative process in our system of gov ernmen t isto permit the electoral process to go forward and let the courts grapple with issues ofinterpretation, constitutionality and (if necessary) severability after the election. 5 That isundoubtedly why there is no case in which the court removed from the ballot a measure thatcontained dozens of prov isions that were not eve n alleged to be unconstitutional.6

H .TH E REASONS PETITIONERS GIVE TO JUSTIFYPREELECTION REVIEW ARE INSUBSTANTIAL.

Instead of attempting to show why their challenge to a few of Proposition 5's provisionsrequires removal of the entire measure from the ballot prior to the election, Petitioners argue thatremoval is justified because the Department of Corrections is in a financial crisis, and passage ofthe measure will require the state to expend billions of dollars to implement a constitutionallyflawed measure before this Court could grant effective post-election relief. While one factual

5 1n this regard, the post-passage history of Proposition 36 is instructive, particularly becauseProposition 5 incorporates and builds upon many of the provisions of the earlier initiative. Compareproposed Penal Code 1210.1 with Penal Code 1210.1. Once enacted, Proposition 36 spawnednumerous cases concerning the scope and propriety of many of its provisions. S ee, e.g., People v. A lice,41 Cal. 4th 668 (2007); People v. Guzman, 35 Cal. 4th 577 (2005); People v. Canty, 32 Cal. 4th 1266(2004); People v. Floyd, 31 Cal. 4th 179 (2003); In re Varnell, 30 Cal. 4th 1132 (2003). In each instance,the courts resolved these disputes without striking down the statute, in whole or in part. Petitioners offerno reason to believe that the courts would be unable to achieve a similar result in any litigation broughtafter the passage of Proposition 5.

6 Even after an election, the Court has repeatedly refused to invalidate whole initiatives simplybecause someor even mostof their provisions were invalid. See, e.g., Hotel & Rest. Employees Int?Union v. Davis, 21 Cal. 4th 585, 614-15 (1999) (holding most of Proposition 5 invalid but severing avalid provision waiving the State's sovereign immunity); Legislature v. Eu, 54 Cal. 3d 492, 534-35(1991) (severing invalid provision of Proposition 140 from remainder); Raven v. Deukmejian, 52 Cal. 3d336, 356 (1990) (severing one invalid portion of Proposition 115 from remainder); Ca/farm Ins. Co. v.Deukmejian, 48 Cal. 3d 805, 822, 836-37 (1989) (severing invalid provisions of Proposition 103 fromremainder).


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premise of this argume nt is correctthe State in general and the correctional system in particularface serious financial problems every other point made by Pe titioners is wrong.First, Petitioners claim, relying on the Legislative Analyst's analysis, "that Proposition 5

will result in an increase in state costs exceeding $1 billion annually." Verified Petition ("Pet.")14. This contention is seriously misleading. The Legislative Analyst did say that enactment ofProposition 5 would result in "[i]ncreased state costs that could exceed $1 billion annuallyprimarily for expanding drug treatment and rehabilitation programs." Pet. Ex. B at 77. But shealso made two other projections that Petitioners ignore. First, she projected that passage ofProposition 5 would result in Isjavings to the state that could exceed $1 billion annually dueprimarily to reduced prison and parole operating costs." Id. Second, she estimated that themeasure would also produce "[n]et state savings on a one-time basis on capital outlay costs forprison facilities that could exceed $2.5 billion." Id. Hence, the $1 billion in annual costs fordrug treatment and rehabilitation that Petitioners trumpet so loudly is matched by a $1 billionannual savings in prison operating costs and dwarfed by a savings of $2.5 billion in capitaloutlays. Accordingly, preelection review cannot be justified by Petitioners' "Chicken Little"claims of financial distress.7

Second, Petitioners claim that Proposition 5's effective date will require the state toimplement the measure before a court could conduct postelection review. This contention isequally wrong. As Petitioners grudgingly concede (Pet. Mem. 45 (quoting Pet. Ex. A at 61(Prop. 5, 53))), Proposition 5 by its terms will become effective on July 1, 2009, except as themeasure otherwise provides. Moreover, its provisions apply only prospectively, thus ensuringthat implementation will not be burdened by issues of retroactive application. Id.

Accordingly, there will be almost eight months between Election Day and the date onwhich Proposition 5 becomes effective, should it pass. That is enough time for the Court toconsider a postelection challenge to the constitutionality of a handful of the measure'sprovisions, particularly compared to the few weeks available to decide Petitioners' preelectionchallenge. See, e.g., Legislature v. Eu, 54 Cal. 3d 492 (1991) (petition for postelection reviewfiled on Feb. 21, 1991, opinion issued on Oct. 10, 1991); Raven v. Deukmejian, 52 Cal. 3d 336(1990) (petition for postelection review filed on June 2 1, 1990, opinion issued on Dec. 24, 1990).

To be sure, as Petitioners note, Proposition 5 contains a few provisions that require actionbefore July 1, 2009. Thus, the Secretary of Rehabilitation and Parole must be appointed byFebruary 1, 2009, the Parole Oversight and Accountability Board must be appointed by

'Moreover, it bears mentioning that Petitioners do not claim that Proposition 5's provisionsrequiring expanded rehabilitation services for parolees and treatment services for nonviolent drugoffenders are themselves unconstitutional. Plainly the electorate, like the Legislature, has the power toprioritize among permissible uses of state funds and decide, for example, that expanding drug treatmentand rehabilitation programs is both more cost-effective and more humane than building additional prisonsto house nonviolent offenders. Petitioners offer no reason why the electorate should be deprived of theability to make this choice.


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March 31, 2009, and $150 million shall be appropriated from the General Fund to the SubstanceAbuse Treatment Trust Fund. Pet. Mem. 45-46; Pet. Ex. A at 10-11 (Prop. 5, 10 (proposedGov't Code 12838.13)), 40 (Prop. 5, 23 (proposed Penal Code 3063.03(b))), 48-49 (Prop. 5,36 (proposed Health & Safety Code 11999.5(a))). 8 But Petitioners do not allege that any ofthese provisions are constitutionally infirm. 9 Consequently, Proposition 5's implementationschedule provides no justification for preelection review.

H I.PETITIONERS' CONSTITUTIONAL CLAIMS DO NOTJ U ST I FY R E M O V I N G PR O PO SI T I O N 5 FR O M T H E BA L L O T .

Even if a meritorious challenge to a few of Proposition 5's provisions could somehowjustify removing the entire measure from the ballot, notwithstanding the strong presumptionagainst preelection review, Petitioners would not be helped. They have fallen far short of theclear showing of invalidity that even they admit is necessary under Brosnahan v. Eu.

A. Petitioners Cannot Show That The Provisions Governing The Duties AndT erm O f The S ecretary Of R ehabilitation And P arole Are C learlyUnconstitutional.Petitioners first challenge the provisions of Proposition 5 that give the newly createdSecretary of Rehabilitation and Parole "primary responsibility for parole policies and

rehabilitation programs" and that give this official a six-year term. Pet. Mem. 25-31. The firstprovision does not say what Petitioners claim it does and the second is no different than otherstatutes of unquestioned constitutionality. Neither provision is unconstitutional, much less soclearly invalid as to justify removing the entire measure from the ballot.

Like all statutes, the provision of Proposition 5 giving the Secretary of Rehabilitation andParole "primary responsibility for parole policies and rehabilitation programs" must beinterpreted in its statutory context. Proposition 5 changes the leadership structure of the

'Petitioners also contend that the provision of Proposition 5 requiring that rehabilitation programsbe in place for incarcerated inmates who are eligible for parole becomes effective on April 1, 2009. Thereis no textual support for this claim. While the provision in question requires that such services be in place90 days before an inmate's release, this provision does not contain its own effective date and, thus,becomes effective with the rest of Proposition 5 on July 1, 2009. In all events, because Petitioners do notclaim that this provision is constitutionally invalid, its effective date is irrelevant.

9 While Petitioners do allege that the Secretary of Rehabilitation and Parole cannot constitutionallybe given a six-year term, there would be an immediate need to rule on the constitutionality of thisprovision only in the unlikely event that the Governor tried to fire the Secretary that he had appointedonly a few months earlier. This is extremely unlikely to occur before a court could rule on a post-electionchallenge to this provision.


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Department of Corrections and Rehabilitation by creating two heads, rather than one: aSecretary of Corrections and a Secretary of Rehabilitation and Parole. As one would expect, themeasure then defines each official's scope of authority over the Department whose leadershipthey share: "The duties of the two secretaries shall be divided as follows: (1) The Secretary ofRehabilitation and Parole shall have primary responsibility for parole policies and rehabilitationprograms . . . ; (2) The Secretary of Corrections shall have primary responsibility forinstitutions. . . ." Pet. Ex. A at 7-8 (Prop. 5, 4 (proposed Gov't Code 12838(a)(1), (2))).

As the context indicates, these provisions simply divide the duties currently given to thesingle top official of the Department of Corrections and Rehabilitation between the two officialswho would share the Department's leadership if the measure passes. One of these officials, theSecretary of Corrections, would have "primary responsibility" for one of the Department's twoprimary concernscorrectional institutionswhile the Secretary for Rehabilitation and Parolewould have "primary responsibility" for the Department's other main concernrehabilitationand parole. Neither provision raises any constitutional issue, because neither gives eitherSecretary any power vis-a-vis the Governor. Instead, as just noted, the two provisions simplydivide the existing responsibilities of the current head of the Department between the twoSecretaries. There is nothing unconstitutional about that, as Petitioners implicitly recognize bytheir failure to challenge the provision giving the Secretary of Corrections "primaryresponsibility" for correctional institutions. Moreover, even if this provision were less clear thanit is, it would still be interpreted by the courts to avoid constitutional problems. S ee, e.g., Peoplev. Navarro, 7 Cal. 3d 248, 260 (1972) ("It is not to be presumed that the Legislature woulddeliberately enact a statute prohibited by the Constitution"). In short, the "primaryresponsibility" provisions of Proposition 5 do not warrant rem oving the measure fro m the ballot.

The provision giving the Secretary of Rehabilitation and Parole (and a few subordinateofficials) a fixed term stands on equally firm ground. In Marine Forests Society v. CaliforniaCoastal Commission, 36 Cal. 4th 1 (2005), the Court observed that "[title Framers of the federalConstitution . . . opted to establish a strong, unitary executive officerthe Presidentwithextensive executive authority." Id. at 30. Yet this has not kept Congress from enacting statutesgiving key federal officialssuch as the Director of the Federal Bureau of Investigation("FBI")fixed terms that extend beyond the four-year term of the President. Pub. L. No. 94-503, tit. II, 203 (Oct. 15, 1976), 90 Stat. 2427 (giving FBI Director 10-year term); 12 U.S.C.242 (giving members of the Federal Reserve Bank board 14-year terms from which they areremovable only for cause). Analogous state statutes must also be constitutional, since "[i]ncontrast to the federal Constitution, there is nothing in the California Constitution that grants theGovernor (or any other executive official) the exclusive or paramount authority to appoint allexecutive officials." Marine Forests, 36 Cal. 4th at 31.

Indeed, this Court has already rejected numerous claims that the Legislature could notmake an appointment to a position in the executive branch for a fixed term. In Marine Forests,the Court upheld legislative appointments to the Coastal Commission for a four-year term, eventhough the Legislature appointed a majority of the Commission members. Id. at 49-50. InPeople ex rel. Waterman v. Freeman, 80 Cal. 233 (1889), the Court upheld a statute giving theLegislature power to appoint all the members of the state library board of trustees for a four-year


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term. In People ex rel. Aylett v. Langdon, 8 Cal. 1 (1857), the Court upheld a statute authorizingthe Legislature to appoint an individual for a fixed term as resident physician of the state asylumfor the insane. 1 0 As one might expect, given these decisions, there are numerous state officers inthe executive branch who serve fixed terms, such as the members of the Fair Employment andHousing Commission and the California Medical Assistance Commission. See Gov't Code12903; W elf. & Inst. Code 14165.2.

These cases compel rejection of Petitioners' challenge to the six-year term of the Secretaryof Rehabilitation and Parole. If the Governor's executive power is not violated when theLegislature appoints an individual to a fixed term as superintendent of the state insane asylum , ora majority of the Coastal Commission or the state library board of trustees, it is similarly notviolated when the Governor appoints an individual to a fixed term as Secretary of Rehabilitationand Parole.

Nor do the measure's provisions regarding the Secretary of Rehabilitation and Paroleviolate Article V. Section 8(b) of the California Constitution. Petitioners claim this provisiongives the Governor "broad review and policy-making authority over parole matters." Pet. Mem.26. It does no such thing. Instead, it simply provides for gubernatorial review of a narrow classof parole decisions: those affecting "person[s] sentenced to an indeterminate term uponconviction of murder."

Nothing in Proposition 5 doesor couldlimit this power. The provisions dividing theresponsibilities of the head of the Department between the two new Secretaries, and giving eachprimary responsibility over the area within their domain, do not even attempt to do so. Nor doesanything in Proposition 5 affect the criteria that either the Board of Parole Hearings or theGovernor use in deciding whether to grant parole to any inmatemuch less the narrow class ofinmates covered by Article V, Section 8(b). There is no conflict between that provision andProposition 5.

1 0Accord, Cal. Ass 'n of Retail Tobacconists v. State, 109 Cal. App. 4th 792, 822 n.14 (2003)(rejecting contention that initiative provisions creating California Children and Families Commissionwere invalid because members were appointed for a fixed term).1 'Contrary to Petitioners' contention (Pet. Mem. 26-27), nothing in In re Rosenkrantz, 29 Cal. 4th

616 (2002), holds that the Governor has "primary and inherent" authority over parole. To the contrary,Rosenkrantz expressly recognizes that before Article V. Section 8(b) was added to the constitution in1988, the "Governor had no direct role in decisions whether to grant or deny parole to an incarceratedindividual." Id. at 659. Moreover, the power conferred by Article V, Section 8(b) is carefullycircumscribed: the Governor must act pursuant to procedures established by the Legislature, whichrequire him to issue "a written statement. . . specifying the reasons for his or her decision" (Penal Code3041.2(b)) and can only consider "the same factors which the parole authority is required to consider."Cal. Const. art. V, 8(b).

Rosenkrantz also refers to "the inherent and primary authority of the executive branch [not theGovernor] over parole matters." 29 Cal. 4th at 667. Since Proposition 5 keeps parole decisions withinthe executive branch, it does not conflict with this description of the parole process.


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B. Petitioners Cannot Show That The Provision Governing Appointment OfThe Board Of Parole Hearings Is Clearly Unconstitutional.Petitioners' challenge to Proposition 5's provision governing appointment of the members

of the Board of Parole Hearings fares no better than their challenge to the provisions regardingthe Secretary of Reha bilitation and Parole.Under current law, members of the Board are nominated by the Governor and subject to

confirmation by the Senate. Gov't Code 12838.4. Proposition 5 eliminates the confirmationrequirement, but mandates that the Governor make these appointments "upon recommendationof the Secretary of Rehabilitation and Parole." The net effect of these changes is to enhance theGovernor's power. His appointments are final once made, and are no longer subject to approvalby a coequal branch of Government. Instead, they need only be "recommended" by asubordinate Executive Branch official, whom the Governor may well have appointed.

Nevertheless, Petitioners contendwithout citing a single case in support of theirargumentthat these changes violate the "primary and inherent' gubernatorial power regardingparole review and policy." Pet. Mem. 31. As discussed above, there is no such inherentgubernatorial power, only the limited power to review a narrow class of parole decisions. S eep.13 & n.11, supra. Nothing in this appointment provision impairs that power.

Moreover, Petitioners' challenge to this provision is contrary to this Court's recentdecision in Marine Forestsanother relevant decision that Petitioners fail to cite. There thisCourt held that "under this state's constitution the Legislature possesses authority not only todetermine whether to create new executive offices, agencies, or commissions, but also to decidewho is to appoint such executive officers and commissioners." 36 Cal. 4th at 31. Accordingly,this Court has recognized that "Wile Legislature has power . . . to declare the manner in whichofficers other than those provided by the constitution shall be chosen. Such officers may beappointed by the legislature itself, or the duty of appointment may be delegated and imposedupon some other person or body. There is no limitation to any particular person or class ofpersons upon whom alone the legislature may impose this obligation." Ex parte Gerino, 143Cal. 412, 414-15 (1904) (emphasis added). Thus, the Legislature can pass a statute giving someother official the power to appoint members of the Board of Parole Hearings. A fortiori, it canrequire that such appointments be made by the Governor upon the recommendation of thatofficial. Since "the power of the people through the statutory initiative is coextensive with thepower of the Legislature" (Legislature v. Deukmejian, 34 Cal. 3d 658, 675 (1983)), the Peoplecan exercise the same power by statutory initiative.12

1 2 0fcourse, as Marine Forests indicated, other constitutional constraints, such as the separation ofpowers, come into play when the Legislature gives itself powers of appointment over executive branchofficials. But no such concerns are raised here, because Proposition 5 does not give the Legislature, orlegislative leaders, new appointment powers.


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C. Petitioners Cannot Show That The Provisions Governing TreatmentDeterminations Are Clearly Unconstitutional.Petitioners claim that certain provisions in Proposition 5 that relate to drug treatment and

monitoring unconstitutionally divest the courts of judicial discretion. This claim, too, does notcome close to justifying removal of the m easure from the ballot.To put these claims in context, it is necessary to describe how the drug treatment process

created by Proposition 5 would work. Since Petitioners focus on "Track I" defendants (Pet.Mem . 40-41), we shall do the same.As the Legislative Analyst noted, under Track I, "offenders who have no prior violent or

serious offenses on their record could enter into a deferred entry of judgment arrangement withthe court." Pet. Ex. B at 66. Eligibility for "Track I" is defined by statute, and depends on thedefendant's criminal history and current charges. Pet. Ex. A at 14 (Prop. 5, 14 (proposed PenalCode 1210.03(a))). However, if there is a factual dispute as to eligibility, an evidentiaryhearing is required and the judge must resolve the issue. Id. (proposed Penal Code 1210.03(d)).In addition, while defendants charged with nonviolent drug possession offenses are ineligible forTrack I if they are concurrently facing other charges that are not nonviolent drug possessionoffenses (id. (proposed Penal Code 1210.03(a)(4))), a court has power to find the defendanteligible "if the court determines that it is in the interests of the defendant and in the furtheranceof justice to permit deferred entry of judgment." Id. (proposed Penal Code 1210.03(b)). Thus,a judge, and no one else, makes the initial determination whether a defendant is eligible for"Track I" treatment.

If the court finds the defend ant eligible for such treatment, and the de fendant consents, "thecourt shall grant deferred entry of judgment if the defendant pleads guilty to the charge orcharges and waives time for pronouncement of judgment." Pet. Ex. at 17 (Prop. 5, 14(proposed Penal Code 1210.03(f))). The court must then "order the defendant to appear for aclinical assessment and a criminal history evaluation." Id. (Prop. 5, 14 (proposed Penal Code1210.03(i))). The "clinical assessment" is defined by statute as "an evaluation performed by aqualified health care professional or drug treatment professional. . . using a standardized tool todetermine an individual's social and educational history, drug use history, addiction severity andother factors indicating the individual's needs and the appropriate course of drug treatment,including opioid agonist treatment." Id. at 12 (Prop. 5, 11 (proposed Penal Code 1210(g))).The "criminal history evaluation" is defined by statute as a "report by a probation department orother entity appointed by the court detailing a defendant's history of arrest, conviction,incarceration and recidivism. Such an evaluation may include opinions or recommendationsregarding the risk of recidivism by the defendant and appropriate monitoring conditions by thedefendant." Id. at 11 (Prop. 5, 11 (proposed Penal Code 1210(h))).

Once the "clinical assessment" and the "criminal history evaluation" are complete, the trialcourt must "order the defendant to attend and complete an appropriate treatment program," withthe particular program chosen by the court. In addition to treatment, the judge has discretion to"require participation in educational programs, vocational training, family counseling, health


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care, including mental health services, literacy training and community service, harm reductionservices, and any other services that may be identified as appropriate by the clinical assessmentof the defendant or through other evaluations of the defendant's needs." Id. at 15 (Prop. 5, 13(proposed Penal Code 1210.02(a)(8))). The period of treatment can be anywhere from six to 18months, at the trial court's discretion. Id. at 18 (Prop. 5, 14 (proposed Penal Code1210.03(k))).

If treatment does not start within 30 days, "the court shall conduct a hearing to determinethe reasons for the defendant's failure to begin treatment," at which it must consider "evidencefrom the parties, probation department and treatment provider." Id. at 17 (Prop. 5, 14 (proposedPenal Code 1210.03(i))). The court may either re-refer the defendant to treatment, with orwithout sanctions, or "may enter judgment for the defendant's failure to start treatment." Id .(Prop. 5, 14 (proposed Penal Code 1210.03(j))).

During treatment, the court must schedule "periodic review hearings to evaluate adefendant's progress." Id. (Prop. 5, 14 (proposed Penal Code 1210.03(o))). At such hearings,the "court shall consider the use of incentives and rewards to encourage continued progress, andmay impose graduated sanctions in response to problems reported by the treatment provider orprobation department." Id. Nothing in Proposition 5 limits the judge's discretion to use eitherpositive incentives or negative sanctions (other than jail) to encourage continued progress. Id .

If serious problems develop during treatment, the court has similar discretion. If thetreatment provider, prosecuting attorney, probation department or the court itself believes "thatthe defendant is performing unsatisfactorily in the assigned program," or the defendant isconvicted of a new offense "or engaged in criminal conduct rendering him or her unsuitable fordeferred entry of judgment," the "court shall hold a hearing to determine whether judgmentshould be entered." Pet. Ex. A at 18 (Prop. 5, 15 (proposed Penal Code 1210.04)). After thehearing the court may find the defendant guilty of the original offense and enter judgment if itfinds that the defendant (1) has been convicted of a specified offense; (2) has engag ed in criminalconduct rendering him or her unsuitable for deferred entry of judgment; (3) "is not performingsatisfactorily in the assigned program"; or (4) "is not benefiting from education, treatment, orrehabilitation." Id .

To summarize, then, the trial court has control over each critical stage in the process. Itmakes the initial decision whether the defendant is eligible for Track I treatment and decideshow long treatment will last and who the treatment provider will be. It also has discretion torequire that treatment be accompanied by any of a panoply of additional services. If treatmentdoes not start within 30 days, it can remove the defendant from T rack I and enter judgment or re-refer the defendant for treatment. During treatment the court has discretion to use incentives andrewards to encourage continued progress or impose sanctions if necessary. If more seriousproblems develop, such as a new conviction or a belief on the part of the treatment provider orthe prosecuting attorney that treatment is progressing unsatisfactorily, the court has discretion todetermine whether to continue treatment or enter judgment.


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Petitioners nevertheless challenge this complex scheme on two grounds. First, theychallenge certain mandatory provisions of the measure on the basis that they deprive the court ofindividualized sentencing discretion. Thus, they attack the provisions of Proposition 5 whichdefine the drug treatments that must be made available to nonviolent drug offenders, theprovisions which require that a defendant found ineligible for further "Track I" treatment betreated under "Track II," and the provisions which require that "Track II" defendants receiveprobation. See Pet. Mem. 39-41. However, there is no serious claim that these provisions areunconstitutional. These provisions simply follow existing law, which requires the placement ofqualifying drug offenders in appropriate treatment. See Penal Code 1210.1(a) (court "shall"place probationers who qualify for treatment into "an appropriate drug treatment program").Indeed, the Penal Code is replete with provisions that require judges to impose defined sentencesin a variety of contexts, from mandatory minimum sentences to "Three Strikes" provisions.Such legislatively imposed requirements do not violate the separation of powers. See, e.g.,Manduley v. Superior Court, 27 Cal. 4th 537, 552 (2002) ("The judicial power to choose aparticular sentencing option. . . may be eliminated by the Legislature and the electorate").

Petitioners also complain that other provisions of Proposition 5 improperly delegatejudicial power to non-judicial personnel, by requiring that certain treatment-related decisions bemade by the trial court in reliance on clinical assessments or determinations by the treatmentprovider. These provisions are as follows:

(1 ) the requirement that "[i]n determining an appropriate treatment program, the trialcourt must rely upon the clinical assessment of the defendant" (Pet. Ex. A at 14(Prop. 5, 13 (proposed Penal Code 1210.02(a)(1))));(2 ) the requirement that, in choosing "appropriate monitoring conditions andrequirements imposed upon the defendant, the court must rely upon the clinicalassessment" (id. (proposed Penal Code 12 10.02(a)(3)));(3 ) the requirement that the court "shall refer the defendant to opioid agonist treatmentor other medication-assisted treatments where the clinical assessment indicates theneed for such treatment" (id. (proposed Penal Code 1 210.02(a)(2)));(4 ) the requirement that the court, in determining whether the defendant has performed

satisfactorily in treatment, "shall be guided by the evaluation provided for the courtby the qualified treatment professional in charge of the defendant's treatmentprogram, and the treatment provider's opinion" (id. at 19 (Prop. 5, 15 (proposedPenal Code 1210.04))); and

(5 ) the requirement that, if the trial court decides not to enter judgment despite claimsthat the defendant is not performing satisfactorily, the treatment plan may beamended "consistent with the recommendation of the treatment provider." Id.For multiple reasons, these claims provide no basis for removing Proposition 5 from theballot. First, they do not delegate the basic decisions regarding initial and continuing eligibility

for "Track I" treatment, but only the interstitial decisions regarding the kinds of treatment that


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shall be provided. There is nothing unconstitutional in that. For example, in the somewhatsimilar context of parental visitation rights, "the power to decide whether any visitation occursbelongs to the court alone." In re S.H., 111 Cal. App. 4th 310 , 317 (2003) (em phasis in original).Accordingly, a court may not give a child (or therapists) the power to decide whether visits shalloccur. Id. at 319; accord, In re Julie M, 69 Cal. App. 4th 41, 51 (1999). Nevertheless, "thechild's social worker may be given responsibility to manage the actual details of the visits,including the power to determine the time, place and manner in which visits should occur." In reS.H., 111 Cal. App. 4th at 317. Moreover, a therapist may be given discretion to determine whencourt-ordered visitation should commence, based on the therapist's own professional judgmentregarding whether the prerequisites for successful visitation have been met. In re Chantal S., 13Cal. 4th 196, 213-14 (1996) (upholding order vesting discretion in therapist of parent's choice todetermine when parent had made "satisfactory progress" so that court-ordered visitation couldbegin).

The limited discretion given to the clinical evaluation and the opinions of treatmentproviders under Proposition 5 is constitutional under these cases. Just as the trial court retainsthe power under these cases to determine whether to order any visitation, the trial court underProposition 5 makes the critical decisions whether the defendant is eligible for Track I treatmentand whether that treatment should be terminated, and a judgment of guilt entered, if problemsdevelop. The only decisions in which the court must "rely" on qualified health careprofessionals concern the appropriate modes of treatment for the particular defendant andwhether the treatment is performing satisfactorily in treatment. These interstitial decisions areanalogous to decisions regarding the time, place and manner of parental visits, which may bedelegated to non-judicial personnel, such as the discretionary determ ination upheld in Chantal S.,which made the start of visitation contingent on a therapist's decision that the parent had made"satisfactory pro gress ." 13

Moreover, most of the provisions of Proposition 5 that Petitioners challenge do notinfringe on judicial discretion even with respect to the limited subjects they address. Forexample, two provisions provide that the trial courts "must rely" on the clinical evaluation inordering treatment and imposing monitoring conditions. Pet. Ex. A at 14 (Prop. 5, 13 (proposedPenal Code 1210.02(a)(1), (3))). But these provisions neither preclude the trial court fromconsidering and relying on other information nor require the trial court to follow the evaluation'srecommendations.

1 3 Indeed, the delegation of authority upheld by this Court in Chantal S. was much broader than theones at issue here. The therapist who made the "satisfactory progress" determination in that case waschosen by the parent and there was no extrinsic limit on the factors he or she could consider in thedecision. Here, in contrast, the drug treatment provider is chosen by the court, and the clinical evaluationof the defendant for appropriate treatment must be made "using a standardized tool" and must evaluatefactors specified by statute as relevant to the defendant's amenability for treatment. Pet. Ex. A at 12(Prop. 5, 11 (proposed Penal Code 1210(g))). Finally, a private therapist is responsible to his or herclient, while the clinical evaluators and treatment providers must constantly interact with, and beresponsive to, the court. See In re James R., 153 Cal. App. 4th 413, 440 (2007).


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Indeed, the second of these two provisions indicates that the drafters could not haveintended the phrase "must rely" to limit judicial discretion. Proposed Penal Code Section1210.02(a)(3) provides that "[i]n determining the appropriate monitoring conditions andrequirements imposed upon the defendant, the court must rely upon the criminal historyevaluation and clinical assessment." But the "criminal history evaluation" and the "clinicalassessment" are two separate documents, prepared by two different agencies, that focus ondifferent factors. See p.15, supra. Accordingly, they could well come to different conclusionsregarding the appropriate "monitoring conditions and requirements" that should be imposedupon the defendant. For example, the clinical assessment might find the defendant potentiallyamenable to outpatient treatment, but the criminal history evaluation might find that thedefendant presents a high risk of recidivism, requiring monitoring conditions that can only beimposed in residential treatment. 1 4 Yet, under Proposition 5, the trial court "must rely" on boththe clinical assessment and the criminal history evaluation in imposing monitoring conditions.Accordingly, the drafters could not have intended that "rely" mean "be bound by," but only"consider" or "follow unless persuaded otherwise." Such requirements are unquestionablyconstitutional. See People v. Navarro, 7 Cal. 3d 248, 258 (1972) (Legislature may requiresentencing court to consider probation report); Penal Co de 1203(b )(3) (if a person is eligible forprobation, the court shall order a probation report and "shall consider any [such] report . . . andshall make a statement that it has considered the report. . .").

Moreover, even if these provisions were less ambiguous than they are, they would need tobe interpreted so as to preserve, rather than impair, judicial authority. See People v. SuperiorCourt (Romero), 13 Cal. 4th 497, 518 (1996) (judicial discretion to strike prior convictions mustbe read into "Three Strikes" law); see generally San Francisco Taxpayers Ass 'n v. Bd. ofSupervisors, 2 Cal. 4th 571, 581 (1992) ("we assume that the voters intended the measure to bevalid and construe it to avoid serious doubts as to its constitutionality" (internal quotation marksomitted)); cf In re Danielle W, 207 Cal. App. 3d 1227, 1237 (1989) (trial court order providingthat parental visitation was in the discretion of the children interpreted to mean that the childrenonly had the right to "express their desires in this regard"). For all these reasons, Petitioners'challenge to the two "must rely" provisions of Proposition 5 do not justify removing the measurefrom the ba llot.15

1 4 Both outpatient treatment and residential treatment are permissible drug treatment options. SeePenal Code 1210(b).

1 5 1 tlso bears mentioning that the "standardized tool" by which clinicians would evaluatedefendants does not yet exist, and will not exist until the executive branch creates, approves andimplements the appropriate evaluation frameworkat some point well after Proposition 5 has gone to thevoters. The same is true of any rules that would govern the form of clinical assessments under proposedPenal Code 1210.02(a)(1). This is one more reason that Petitioners' challenge to Proposition 5 ispremature: How can this Court decide whether clinical assessments will encroach on judicial discretion ifit neither knows how evaluators will assess defendants nor how they will report their assessments to thecourt?


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In contrast to these provisions, proposed Penal Code Section 1210.02(a)(2) does removejudicial discretion where the clinical evaluation indicates the need for opioid agonist treatment orother medication-assisted treatment. However, under this Court's decision in Chantal S., it is notunconstitutional for a court to decide that parental visitation is contingent on the opinion of atherapist that "satisfactory progress" has been made in the parent's therapy. A fortiori, there isnothing unconstitutional in a statute requiring a court to follow the opinions of qualified drugtreatment professionals on the medical issue of whether a defendant is a suitable candidate fortherapy that requires use of d rugs such as opioid ago nists.

Petitioners' remaining delegation challenges are even more far-fetched. There is nothingunconstitutional in the measure's requirement that the court, in determining whether thedefendant has performed satisfactorily in treatment, "shall be guided by the evaluation providedfor the court by the qualified treatment professional in charge of the defendant's treatmentprogram, and the treatment provider's opinion." Pet. Ex. A at 19 (Prop. 5, 15 (proposed PenalCode 1210.04)). The phrase "shall be guided" imposes no requirement that the trial courtactually follow the evaluation, only that the evaluation be considered. Even if that were not so,the trial court retains ample power under the statute to make its own determination about thedefendant's progress. Even if the treatment provider finds that the defendant has "performedsatisfactorily" in the assigned program, the court still has independent power under the statute torevoke treatment if it finds that "the defendant is not benefiting from education, treatment, orrehabilitation," (id.), and nothing in the statute requires that this judicial determination be guidedby, or made in reliance on, anyone else's opinion. The statute therefore does not impair judicialauthority.

Finally, Petitioners challenge Proposition 5's requirement that, if the trial court decides notto enter judgment despite claims that the defendant is not performing satisfactorily, the treatmentplan may be amended "consistent with the recommendation of the treatment provider." Id. Likethe judgment about whether a defendant is amenable to opioid agonist treatments such asmethadone, this decision is analogous to the delegation to professional judgment upheld by thisCourt in In re Chantal S. Accordingly, Petitioners cannot show that this statute is clearlyunconstitutional.

D. Petitioners Cannot Show That The Provisions Governing TreatmentDeterminations Are Clearly Unconstitutional.The final string in Petitioners' bow is the contentionagain, made without citing a singlecasethat Proposition 5's provisions regarding administrative oversight of drug treatmentprograms invade judicial authority. Pet. Mem. 41-43. This contention adds nothing to

Petitioners' delegation claims. County jails, county probation departments and state prisons areall involved in the imposition of criminal sentences under the Penal Code, just like drugtreatment programs under Proposition 5. Yet such facilities are, of course, under theadministrative supervision of the relevant county or the State. Moreover, these institutions aresubject to innumerable statutory and regulatory requirem ents.


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For example, probation officers are given broad powers to determine monitoring andsupervision of high-risk sex offenders under a statutory and regulatory scheme that requires verylittle input from the judiciary. Under this scheme, the state is charged with developing the State-Authorized Risk Assessment Tool for Sex Offenders (SARATS0), a measurement that letsprobation officers decide which probationers are deemed to pose a high risk of committing sexcrimes. See Penal Code 290.04 et seq. Developing SARATSO is a non-court function thatinvolves consultation with experts from many disciplines and oversight by an executive-branchboard. Id. Every probation department "shall ensure" that all probationers deemed to "pose ahigh risk to the public of committing sex crimes are placed on intensive and specializedprobation supervision and are required to report frequently to designated probation officers." Id.1203f. In addition, probation officers may put any other registered sex offender who is onactive probation in "intensive and specialized supervision" and require him or her to "reportfrequently" to probation officers. Id.

Thus, under these statutes, probation officers have complete discretion to decide what sortof treatment and monitoring conditions are required of sex offenders designated as high risk.Moreover, such designations are made not by a judge, but by a complex statistical toolmaintained by non-judicial entities. Probation officers also have the discretionagain withoutjudicial inputto place other sex offenders under such special supervision. If this broaddiscretionary scheme of rules, statutes and executive determinations is legal, then Proposition 5cannot be illega1.16

Nor is there merit in Petitioners' complaint that Proposition 5 does not provide thatregulations of the "Oversight Commission" shall be subject to judicial review. Pet. Mem. 42. Ofcourse, no initiative has to reenact the entire Code of Civil Procedure; instead, each statute isinterpreted against the backdrop of existing law. Consequently, the regulations promulgated bythe Oversight Commission are subject to judicial review just like the regulations promulgated byany other state commission. See generally Y amaha Corp. v. State Bd. of Equalization, 19 Cal.4th 1 (1998). Proposition 5 is not unconstitutional merely because it failed to reenact thiselementary principle of adm inistrative law.

1 6 For other examples of probation officers' discretionary powers, see Penal Code Sections1202.8(a) (declaring that all probationers are under the supervision of a probation officer "who shalldetermine both the level and type of supervision consistent with the court-ordered conditions ofprobation") and 1203.1a (probation officer can authorize the temporary removal from custody of inmatebefore release from jail "if he concludes that such an inmate is a fit subject therefor").


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P ROOF OF SE RVICEI, John C. Carrillo, declare:I am a resident of the State of California and over the age of eighteen years and not a party

to the within-entitled action; my business address is Three Embarcadero Center, Seventh Floor,San Francisco, California 94111-4024. On July 25, 2008, I served the following document(s)described as:

PRELIMINARY OPPOSITION

E3by transmitting via facsimile the document(s) listed above to the fax number(s) setforth below on this date by 9:00 a.m.0y placing the document(s) listed above in a sealed envelope with postage thereon

fully prepaid, for deposit in the United States Postal Service through the regular mailcollection process at the law offices of Howard Rice Nemerovski Canady Falk &Rabkin, A Professional Corporation, located at Three Embarcadero Center, SeventhFloor, San Francisco, C alifornia.

E3by transmitting via email the document(s) listed above to the email address(es) setforth below on this date by 9:00 a.m.

En by placing the document(s) listed above in a sealed Federal Express envelope andaffixing a pre-paid air bill, and causing the envelope to be delivered to a FederalExpress agent for delivery.

O by personally delivering the document(s) listed above to the person(s) at theaddress(es) set forth below to the addresses(es) set forth below.

PROOF OF SERVICE-1-


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James F. Sweeney, Esq.Sweeney & Greene, LLP9381 E. Stockton Boulevard, Suite 218Elk Grove, CA 95624Phone: 916/753-1300Fax: 916/753-1333email: [email protected] ttor neys for Petit ioners, Pete W ilson,G ray Davis , Steve C ooley , BonnieDum anis, Rod Pacheco, M ichaelRam os, Dolores Car r

Christopher E. Krueger, Esq.Office of the Attorney GeneralExecutive Offices1300 "I" Street, Room 125Sacramento, CA 95814Phone: 916/324-5502Fax: 916/322-4532email: [email protected] torneys for R espondent , Debra Bowen

Edmund G . Brown, Jr.Attorney GeneralOffice of the Attorney GeneralExecutive Offices1300 "I" Street, Room 125Sacramento, CA 95814Phone: 916/324-5502Fax: 916/322-4532email: [email protected] torneys for Respondent , Debra Bow enI am readily familiar with the firm's practice for collection and processing of documents

for delivery by overnight service by Federal Express, and that practice is that the document(s) aredeposited with a regularly maintained Federal Express facility in an envelope or packagedesignated by Federal Express, fully prepaid, the same day as the day of collection in theordinary course of business.

I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct. Executed at San Francisco, California on July 25, 2008.913-214john C. CarrillCC-- 4- v tS-I-e

preliminary opposition in wilson v. bowen

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